By Joyce Hanson

Law360 (April 9, 2020, 6:35 PM EDT) -- An Alaska federal judge said Thursday that a suit by environmental and Native American groups challenging the Environmental Protection Agency's withdrawal of proposed restrictions on a gold and copper mining project can move forward despite a COVID-19-related stay.

U.S. District Judge Sharon L. Gleason granted the groups' motion to lift the stay stemming from the District of Alaska's March 30 general order staying all civil matters and filing deadlines for 30 days in light of the public health emergency. Judge Gleason noted that the pause in court proceedings due to the pandemic was announced only a day before the plaintiffs had planned to file their opening brief.

"In light of the fact that the District of Alaska imposed the stay of civil cases just one day before the state's brief was due in this case, the court finds good cause to lift the stay," according to the order.

Judge Gleason said Alaska must now file its opposition to the groups' opening merits brief no later than April 14 in the suit challenging the EPA's decision to withdraw proposed restrictions on the massive Pebble Mine project. The mining project proposes to exploit the Pebble deposit — a porphyry copper-gold-molybdenum deposit in the Bristol Bay watershed in Alaska — near unspoiled wilderness and a key salmon habitat.

On Wednesday, Alaska had opposed the bid by groups including the Native American Rights Fund and Trustees for Alaska to lift the COVID-19-related stay, arguing that the matter didn't require immediate attention. The state told the court that it respected its focus on criminal and emergency matters rather than civil cases such as the Pebble Mine dispute.

The EPA declined to take a position on the groups' request to lift the stay, according to court filings.

Alaska said the groups' concerns about the U.S. Army Corps of Engineers' intent to publish a final environmental impact statement in mid-June and a record of decision in August merely constituted a matter of administrative convenience.

"The state simply cannot agree that this is a matter to prioritize given the unprecedented challenges facing the courts in the midst of a global and local health and safety emergency," Alaska said.

The groups had urged the court Monday to lift the stay that stipulates parties can avoid it if they establish a good reason to do so. Proceeding with briefing does not pose a public health threat, the groups said in their motion, asserting that the court should consider the matter because the Corps of Engineers has not slowed its schedule to issue a permit for the mine.

The lawsuit followed the EPA's July decision to reverse a 2014 proposed determination blocking the development of Northern Dynasty Minerals Ltd.-owned Pebble Limited Partnership's open pit mine, according to the Native American and environmental groups' October complaint.

The Obama-era EPA found that mining in the headwaters of Bristol Bay could have "significant and unacceptable adverse effects on ecologically important streams, wetlands, lakes, and ponds and the world-class fishery they support," the complaint said.

The EPA argued on March 20 that environmental groups can't challenge its move to withdraw the 2014 determination, saying the withdrawal is protected under the Administrative Procedure Act.

The groups have countered that the EPA must consider whether the mine would have an "unacceptable adverse effect," as required under the Clean Water Act. Section 404(c) of the act says the EPA can prohibit, restrict or deny the discharge of dredged or fill material if it determines that the use of certain sites for disposal would have a negative impact on fisheries, wildlife, municipal water supplies or recreational areas.

Paul Werner, lead counsel for plaintiff Trout Unlimited, told Law360 in an email Thursday that Alaska's argument regarding the stay was inconsistent.

"Despite intervening in defense of the project in the litigation, it now says the matter is unimportant and there is no rush to proceed in light of the COVID-19 pandemic, while at the same time the Army Corps races ahead despite the crisis to issue a mine permit and prejudice plaintiffs in the litigation," Werner wrote.

An EPA spokesperson declined to comment Thursday.

The plaintiffs are represented by Jeffrey M. Feldman of Summit Law Group PLLC, Ralph H. Palumbo and Lynn M. Engel of Yarmuth LLP, Megan R. Condon and Matthew N. Newman of Native American Rights Fund, Scott Kendall of Holmes Weddle & Barcott, Brian Litmans and Katherine Strong of Trustees for Alaska, Jacqueline M. Iwata, Thomas D. Zimpleman and Joel R. Reynolds of the Natural Resources Defense Council, Thomas S. Waldo and Erin Whalen of Earthjustice, Austin Williams of Trout Unlimited and Paul A. Werner, Steven P. Hollman, Abraham J. Shanedling and Rachelle P. Bishop of Sheppard Mullin Richter & Hampton LLP.

The EPA is represented by Mark A. Nitczynski and Brian Uholik of the U.S. Department of Justice's Environment and Natural Resources Division and Bryan Schroder of the U.S. Attorney's Office for the District of Alaska.

The state of Alaska is represented by Lael Harrison of the Alaska Department of Law.

The lead case is Bristol Bay Economic Development Corp. et al. v. Chris Hladick, U.S. EPA et al., case number 3:19-cv-00265, in the U.S. District Court for the District of Alaska.

--Additional reporting by Juan Carlos Rodriguez and Emma Whitford. Editing by Haylee Pearl.

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